OFFICE OF THE STATE PUBLIC DEFENDER Presentation to THE SECTION D APPROPRIATIONS SUBCOMMITTEE JANUARY 2013
What is the public purpose being addressed and what makes it important? Mission: The mission of the Office of the State Public Defender (OPD) is to provide effective assistance of counsel to indigent persons accused of crimes and other persons in civil cases who are entitled to the assistance of counsel at public expense. The agency helps clients understand their legal rights in a very complex legal environment. Footnote: see a detailed mission statement in the appendix 2
What is the public purpose being addressed and what makes it important? The agency began providing services to clients on July 1, 2006 (FY 2007), so it has been in operation about 6 ½ years. Prior to that date services were provided by counties and cities. The statewide system was formed to address certain legal issues brought forth by the American Civil Liberties Union (ACLU). OPD is an integral part of the criminal justice system. 3
What is authorized and how? The agency operates under Title 47, the Montana Public Defender Act. The constitutions of the United States and the State of Montana guarantee the right to counsel where fundamental liberty interests are at stake. In Montana, minors have the same right to counsel as adults. Footnote: refer to the MCA for the complete rendition of Title 47 4
Supervision of the Agency The agency is supervised by the Montana Public Defender Commission, an 11-member committee nominated by various groups and appointed by the Governor. Daily operations are managed by the Chief Public Defender, the Chief Appellate Defender, and the Conflict Coordinator. 5
System Challenges Growing caseloads creating excess workloads ◦ Historic case growth during FY 2012: ◦ 12% or 3,200 new cases in public defense ◦ 17% increase or 32 new direct appeals ◦ Over 800 case increase in dependent and neglect cases ◦ Most attorneys are at or over the maximum recommended caseloads as indicated by the Case Weighting System ◦ Expanding number of courts to serve ◦ Currently handling two capital cases in eastern Montana ◦ Developing a plan to halt the intake of certain cases ◦ Growth in eastern Montana Recruitment and retention of qualified attorneys and support staff ◦ 27% attorney turnover in public defense and 44% turnover in appellate defense ◦ 36% turnover in support staff in public defense ◦ Most departing employees cite low pay and excess workloads ◦ Inadequate pool of contract attorneys ◦ Contract attorney hourly rate has not increased in many years and is not competitive which impacts the ability to recruit contract attorneys 6
Pay Challenges What difficulty is the agency experiencing in following the agency pay rules? The agency is not able to fully comply with its rules under Policy 540, Broadband Pay Plan, especially section 3 of the policy that outlines the agency’s objectives in administering pay. This section states that “[the objective is to be] . . . externally competitive and sufficiently motivating to more closely reflect an employee’s true value to the organization …” Non-compliance is mainly due to two facts: (1) OPD is using 2006 markets in its pay plan and union contracts to set employee pay levels, making it difficult to recruit and retain a skilled and stable workforce since competitors pay more; and (2) the agency is unable to make wage adjustments in special pay categories to reward employees, which frustrates the workforce. Low pay on top of excess workload is the main contributing factor to the agency’s extremely high turnover in attorney, administrative, and investigator positions. Excessive turnover places burdens on management and the retained workforce and diverts attention from serving clients. In FY 2012 the agency lost over one fourth of its public defender attorney, administrative, and • investigative workforce. (See graphs on pages 30 and 31.) It also lost nearly half of its appellate defender workforce. (See graph on page 36.) • It will be a challenge for the agency to continue to serve its mission of providing effective assistance of counsel with this level of turnover. 7
Pay Challenges What was the agency’s pay philosophy when it implemented the 2013 biennium pay adjustments? The agency is authorized 208.50 positions for the 2013 biennium. Collective bargaining is key in setting the agency’s pay philosophy. During the 2013 biennium the • agency will follow the pay ladders in the collective bargaining agreements. 165 positions or 75% are represented by two collective bargaining agreements, one for staff • attorneys and the other for the administrative and investigative workforce. Under the current attorney agreement the agency can place individuals into a pay range based upon • relevant experience levels and/or complexity of work. Under the support staff and investigator agreement individuals are placed into a pay range based • upon years of experience with the agency. In both bargaining units pay ranges were developed using 2006 market data. • The appellate program is not unionized but follows the union pay ladders. Certain nonunion employees received a pay adjustment for FY 2012. Managers have seen the difference between their pay vs. those they supervise decrease during the 2013 biennium. Exempt employees did not receive a pay adjustment. Pay for the Chief Public Defender position was decreased from $94,000 to $87,000 during FY 2012. 8
Pay Challenges What will be the agency’s pay philosophy for the 2015 biennium and beyond? The agency intends to make its pay competitive within the labor market in which it operates. This will attract the right level of employee skill sets to meet its mission and retain employees once hired. T o prepare for the 2015 biennium budget, agency management worked with the leadership of the American Federation of State County and Municipal Employees (AFSCME) to conduct an attorney salary survey including government attorneys in cities and counties where there are public defender offices as well as attorneys in certain other state agencies. The salary survey was the basis for a decision package for the 2015 biennium to create pay parity between the public defender workforce and their counterparts doing similar work. Attorney pay per the survey will not address pay disparities with other state agencies (see the important note below). The agency will assess its ability to adopt more current market rates of pay within the administrative and investigative bargaining unit as well. Contract negotiations with both bargaining units are expected during the 2013 biennium, which may have financial effects for the 2015 biennium. The agency is also undergoing an independent work classification study. The financial effect, if any, is not yet known. An important note: The 2012 market data provided by the State Human Resource Division for Lawyers indicates that Lawyers classified in pay band 7 would have a competitive minimum pay zone of $71,016 to the maximum pay zone of $110,843 with the market mid-point rate of $90,930. Since the inception of the statewide public defender system the agency has not been funded adequately to adopt the State of Montana market information used by other state agencies when setting pay for Lawyers. OPD Lawyers are at only 60% compared to the market mid-point. Overall the agency is at 67% of market with the next lowest agency average at 78%. The public defender pay ladder is based on a previous salary survey of county, city, and other state agency lawyers that averages pay. A mid-point attorney now makes a base salary of $58,762. The 2012 pay study would adjust this amount to $67,792. This is still much lower than the $90,930 attorney pay mid-point as noted above. 9
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